A Florida law barring children from attending drag shows is constitutional and does not violate the First Amendment, a federal appellate court has ruled. Judge Andrew Brasher, on behalf of the U.S. 11th Circuit Court of Appeals, called the contended law “a straightforward regulation of obscenity.”
“Preventing children from attending adult live performances obscene for them is rationally related to Florida’s interest in safeguarding the well-being of minors,” Brasher wrote in the Aug. 4 decision.
The Protection of Children Act, enacted in May 2023, was challenged five days after its signing when the owners of Orlando restaurant Hamburger Mary’s sued the state, seeking a preliminary injunction. Hamburger Mary’s hosts nightly drag shows and lauds itself on its website as the “only national restaurant brand with a strong history in the LGBTQ+ community.” The restaurant owners took legal action because the business was forced to cancel what it called its “family friendly” Sunday drag shows, which had been advertised as an event where children were welcomed to attend.
The Protection of Children Act bars minors under 18 from attending any “adult live performance,” which is defined as a live show that “depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities … lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.”
According to the law’s three-part obscenity test, such performances featuring lewd conduct are unfit for children if they predominantly appeal to “prurient, shameful, or morbid interest” and is “patently offensive” for the age of the child attending the event, and lacks serious literary, artistic, political or scientific value for the child’s age.
The restaurant’s owners claimed the ban violated their First and 14th Amendment rights. In June 2023, a federal district judge sided with Hamburger Mary’s and issued a preliminary injunction on enforcing the state law. The Aug. 4 decision, in which five judges dissented, lifted the preliminary injunction.
In their lawsuit, Hamburger Mary’s argued that the terms “lewd” and the “age of the child present” were overly broad and unconstitutionally vague.
Florida disagreed and appealed the lower court’s ruling, sending the case to the full 11th Circuit, where the court sided with the state.
The 11th Circuit’s Judge Brasher countered the owners’ claims, saying the meaning of “lewd” is limited to sexual conduct, based on past Florida Supreme Court precedents. The three-part obscenity test must also be passed before a performance legally challenged as lewd can be deemed legal for children to view, Brasher explained.
“The Constitution protects speech, but not obscenity,” the opinion states. “… [I]t is difficult to imagine any sex-based performance that predominantly appeals to a prurient interest being suitable for a child of any age.”
Florida Attorney General James Uthmeier applauded the ruling in a post on X.
“Huge victory for our team at the 11th Circuit! After 3 years of litigation, the full court affirmed the constitutionality of Florida’s ban on children attending sexualized drag shows,” Uthmeier said.
Mat Staver, founder and chairman of Florida-based law firm Liberty Counsel, said the ruling “reinforces the long-standing principles that children should be protected from obscenity.”
“The appeals court rightly ruled that states have a compelling interest in protecting children from obscene content and doing so fits squarely within constitutional boundaries,” Staver said. “Exposing children to lewd adult performances is not protected by the First Amendment, and Florida’s ‘Protection of Children Act’ rightfully shields children from that obscenity. This decision shows that child-protection measures grounded in established obscenity doctrine does not infringe on the First Amendment’s free speech protections.”
The case was sent back down to the U.S. District Court for the Middle District of Florida for a full retrial, where Hamburger Mary’s may seek to prove the law is unconstitutional.
Relevant Scripture: Matthew 18:6, Proverbs 22:6, Ephesians 6:4
